Statutory declarations in business proceedings

What is a statutory declaration?

The new Trade, Commerce and Industry Regulation Act (GewO), Federal Law Gazette I 130/2024, has opened up the opportunity to submit a statutory declaration (registering a trade, appointing a manager pursuant to trade law) in business proceedings. This declaration serves as evidence that the applicant (natural or legal persons) has no grounds for exclusion under Section 13 GewO, regardless whether these ground were realised in Austria or abroad. However, the fact that there are no grounds for exclusion can also be proven by other means of evidence (e.g. criminal record extract).

The consequences of a statutory declaration 

If a statutory declaration is submitted, it provides full proof that there are no grounds for exclusion. It also means that the person concerned is released from the obligation to provide additional evidence (e.g. criminal record extract, foreign character reference). 

Submitting a false statutory declaration has serious consequences:

• Submitting a false statutory declaration constitutes a reason for revoking existing trade licences (Section 87(1)(7) GewO).
• Submitting a false statutory declaration constitutes a ground for exclusion limited to 5 years (Section 13(8) GewO). The granting of leniency is not possible. This ground for exclusion may also affect other companies (businesses) in which the person who submitted a false statutory declaration has significant control.
• In addition, submission of a false statutory declaration may entail consequences under criminal law (such as Section 288 and 289 of the Criminal Code in particular).

If a (different) ground for exclusion already exists, it is possible to apply for leniency prior to registering a trade or prior to appointing a manager pursuant to trade law.

Form of the statutory declaration 

In principle, the statutory declaration is not restricted to any particular form. However, the Federal Ministry of Economics and Labour has prepared the following templates for different cases: 

Statutory declaration for natural persons

• for sole traders
• for a natural person with significant control (e.g. as the personal declaration of a shareholder of a legal person)

Statutory declaration for legal persons (entire entity)

• Can be submitted by a person authorised to represent the legal person externally.
• This declaration also covers all persons with significant control.

Note:
The declarant is responsible for ensuring that the declaration is true for all these persons. Alternatively, any person with significant control can submit their own personal declaration on behalf of legal persons. 

Statutory declaration for legal persons (personal)

• Applies both to the person submitting the declaration and to the business being represented by the declarant.

• All other (natural or legal) persons with significant control must be entered in this declaration. Evidence that no grounds for exclusion apply to these persons must be provided. A statutory declaration can also be used to provide this evidence (either “Statutory declaration for natural persons” or “Statutory declaration for legal persons with significant control”).

Note:
The declarant is responsible for ensuring that the declaration is true for all specified persons with significant control. The ground for exclusion due to a false statutory declaration also applies to persons with significant control if they provide false information. 

Statutory declaration for legal persons with significant control

• For a legal person with significant control.

Statutory declaration of a manager pursuant to trade law

• Must be submitted by the person to be appointed as the manager pursuant to trade law